Courts and States Uphold Environmental Interests as the EPA Favors Toxic Chemicals

If you think the chemicals used in our everyday products and the pesticides sprayed on our foods are safe, you would be wrong. That’s the lesson of the dozens of cases and state-led initiatives related to toxic chemicals and pesticides that have been decided this year. Instead of working to remedy this contamination and restore public health, President Trump’s Environmental Protection Agency (EPA) has been busy proposing rollbacks for existing protections and employing staff who represent the chemical industry. A showdown over these rollbacks will take place in the federal courts in 2019.

PFAS chemicals made headlines this year as countless communities learned they were exposed to the dangerous toxin. PFAS includes a class of per- and polyfluoroalkyl chemicals used in firefighting foams, food packaging, stain- and water-repellent fabrics, dental floss, nonstick cookware, and many other consumer products. Because this chemical is so prolific, it shows up in the bloodstream of nearly all humans and animals on earth. Despite this alarming statistic, the EPA has not set a maximum contaminant level (MCL) for PFAS, even though the EPA has the authority to do so under the Safe Drinking Water Act. The 2018 film “The Devil We Know” explores the weak chemical safety laws, agency capture, and chemical industry influence behind this regulatory blind spot.

One particularly puzzling example involves the EPA’s proposed rollback of rules intended to protect children and teens from pesticide exposure by limiting the minimum age for when they can handle pesticides. These Obama-era protections are under the Agricultural Worker Protection Standard and Certification of Pesticide Applicators Rule and were intended to prevent children from handling pesticides, limit exposure for farmworkers while they are working, and allow farmworkers, many of whom are Spanish-speaking, to have a designated representative to advocate on their behalf. Without explanation, the EPA intends to rollback these protections.

Fortunately, environmental advocates, states, and the courts are not waiting for the EPA to take action. There has been a flurry of toxic chemical litigation this year, and many of the EPA’s proposed regulatory rollbacks will likely be challenged in federal court next year with advocates arguing that these rollbacks are “arbitrary and capricious” in violation of the Administrative Procedure Act.

States in New England are filling the gap left by the EPA. Vermont has set one of the country’s most stringent health advisories and groundwater cleanup standards for some PFAS. Massachusetts, too, has taken some action, recently creating guidelines for drinking water for five PFAS chemicals. Connecticut has followed suit with guidelines for the same five chemicals. The Conservation Law Foundation filed several petitions this year to force New England states to do more.

In May, the Center for Biological Diversity filed a lawsuit challenging the EPA’s failure to complete the legally required steps to assess the dangers of Malathion, another neurotoxin widely used in the U.S. as a chemical pesticide. The EPA had agreed to do this step until after the Trump administration took office and Dow Chemical officials asked the EPA and other federal agencies to abandon years of work assessing the harms of pesticides.

In August, two notable cases against toxics were decided. One case brought by Earthjustice in the Ninth Circuit resulted in the ban of chlorpyrifos, which is sprayed on foods and is unsafe for public health. A former groundskeeper also won the first successful civil lawsuit against Monsanto Corporation over claims that the popular herbicide Roundup caused his cancer. A California jury awarded him more than $289 million in compensatory and punitive damages against the chemical company. There are more than 4,000 other civil cases like this currently pending in the courts.

In October, the Third Circuit ruled thatindividuals whose drinking water was contaminated with PFAS chemicals from neighboring military bases can proceed with their lawsuit against the U.S. Navy. The suit asks the Navy to pay for medical surveillance of exposed families so that serious health problems associated with this toxic class of chemicals can be detected early, increasing the chances of a favorable outcome. These cases signal that courts and juries are not hesitating to issue strong remedies to halt demonstrated contamination from toxic chemicals, even though these chemicals are registered as safe by the EPA.

The EPA’s recent actions are at odds with its mission to protect the environment and public health. This may be explained by taking a close look at the current roster of EPA appointed officials, many of whom come from the chemical industry.

For example, Peter Wright will be nominated to be an assistant administrator of the EPA for the Office of Solid Waste. Wright currently works as managing counsel at Dow Chemical Company. David Dunlap worked at Koch Industries, one of the largest formaldehyde producers in the country. Dunlap was hired to serve as the deputy assistant administrator for research and development at the EPA, an office that produced a health report linking formaldehyde to cancer. This report was never made public, most likely due to chemical industry lobbying. Nancy Beck is now the deputy assistant administrator for chemical safety and pollution prevention. She previously served as the senior director of regulatory science policy at the American Chemical Council, which represents the chemical industry. Most recently, an Alabama jury indicted Onis “Trey” Glenn III, who was the EPA regional administrator for the Southeast regionfor conspiracy to violate ethics laws against using his office for personal gain and soliciting or receiving a “thing of value” from a principal or lobbyist.

Politics aside, environmental advocates and states are successfully using the courts to protect the environment and public health by challenging actions by the EPA. Next year will be marked by these ongoing disputes as environmental and public health advocates fight for chemical reform through the Toxics Substances Control Act and enforcement of the Safe Drinking Water Act, as the EPA’s rollbacks of protections are reviewed by the courts, and as more communities learn the ways they are being poisoned.

Gabriela is a second-year law student interested in international marine policy. She earned her bachelor’s degree in marine sciences from Stockton University in New Jersey. During her undergraduate career, she visited nine countries to analyze the socioeconomic impacts on local fish populations. She became more interested in the fisheries management policy implemented in these regions once she realized the harsh realities that overfished marine species caused for the coastal communities. Gabriela thus decided to pursue a law degree to improve fisheries regulation in areas not traditionally recognized as important stakeholders. During her 1L year, she worked as a research associate for the U.S.-Asia Partnerships for Environmental Law focusing on Chinese fishing policy. Last summer she worked in the New Jersey Attorney General’s Office, primarily on surface water regulations and coastal management. After an amazing first year of law school, Gabriela is back at Vermont Law School ready to submerge herself in more international environmental law. Outside of the classroom, Gabriela serves as a VLS Student Ambassador, Torts teaching assistant, and Vermont Journal of Environmental Law staff editor.

Rachel Stevens LLM’13 has worked as a staff attorney and assistant professor with the Environmental and Natural Resources Law Clinic (ENRLC) since completing the two-year LLM fellowship program in 2016.
phone: 802-831-1073, email: RSTEVENS@vermontlaw.edu